Rapport intérimaire - Rapport No. 314, Mars 1999

Allegations: Declaration of illegality of a strike, acts of anti-union discrimination and imposition of compulsory arbitration

• Allegations: Declaration of illegality of a strike, acts of anti-union discrimination and imposition of compulsory arbitration
  42. 42 The complaint in Case No. 1948 was presented by the Single Confederation of Workers of Colombia (CUT) in a communication dated 9 December 1997. The CUT sent additional information in a communication dated 8 January 1998.
  43. 43 The complaint in Case No. 1955 was presented by the Trade Union of Workers of the Bogotá Telecommunications Enterprise (Sindicato de Trabajadores de la Empresa de Telecomunicaciones de Santafé de Bogotá) (SINTRATELEFONOS) in a communication dated 2 March 1998.
  44. 44 The Government sent its observations on these cases in communications dated 7 October 1998 and 15 January 1999.
  45. 45 Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 46. In their communications dated 9 December 1997 and 2 March 1998, respectively, the Single Confederation of Workers of Colombia (CUT) and the Trade Union of Workers of the Bogotá Telecommunications Enterprise (SINTRATELEFONOS) state that as part of a privatization process which began in 1995, the Bogotá Telecommunications Enterprise (ETB) was converted in November 1997 into a 100 per cent joint-stock company and that its sale has been under discussion since the beginning of 1998. The complainants explain that they have always opposed attempts to privatize and sell ETB through every legal means because the workers in the enterprise want their status as "official employees" to be maintained and the State to retain its social function in the telecommunications sector.
2. 47. The complainants allege that after SINTRATELEFONOS had presented the list of demands for collective bargaining on 24 October 1997, on 4 November the employer dismissed 20 union members and three union officers (including two of those who had negotiated the list of demands), all of whom were covered by trade union immunity. This occurred after the Ministry of Labour, by Decisions Nos. 00286 and 00287 of 9 October 1997, had declared work stoppages allegedly held on 27 and 30 May and 5 and 6 June 1997 illegal (despite the fact that the enterprise had not given the labour inspector the list of workers it intended to dismiss once they had been proved to have participated in, acted in, led, provoked or instigated the alleged work stoppages, as provided in Decision No. 1064 of 1959 and Regulatory Decree No. 2164 of 1959, both adopted by the Ministry of Labour).
3. 48. The complainants add that the dismissals constitute an attempt by the district administration and the management of the enterprise to prevent the setting up of a bargaining committee convened for that day to negotiate the demands, this intention being manifested in the unusual act of inviting a Ministry of Labour and Social Security official as a witness to the possible failure of the trade union bargaining committee to appear. Persons from outside the enterprise who had no knowledge either of the enterprise or of the workers' real problems also came to the bargaining table for the sole purpose of holding up negotiations and preventing concrete agreements from being reached, as evidenced by the record of the completion of the stage of direct settlement of the demands; moreover, the Ministry of Labour was petitioned to convene a compulsory arbitration tribunal. The bargaining process was hindered to the point where the arbitrator appointed by management to the arbitration tribunal convened by the Ministry failed to appear in order to determine the third member of the court together with the trade union's arbitrator, thus further delaying the collective bargaining process. An attempt was also made to have an alleged denunciation of the collective agreement by the management recognized by the workers' bargaining committee for the sole purpose of not negotiating the demands presented by the workers on 24 October 1997. At the same time the management, as part of its policy of spreading uncertainty and fear, extended the deadline within which workers who had not yet availed themselves of the early retirement plan (PAP) for operatives and technicians could sign up for it.
4. 49. The complainants therefore call for the reinstatement of the 23 persons who have been dismissed, payment of their lost wages, and revocation of the Ministry of Labour decisions declaring the alleged work stoppages illegal.
5. 50. The complainants allege further that the system of "faceless justice" had been applied in accusations and investigations brought before internal and external supervisory bodies, such as the Anti-corruption Office (in the case of internal bodies) and the Bogotá Office of the Ombudsman in which about four investigations had been initiated, covering some 800 workers, initially for alleged slight misconduct, which may be converted to extremely serious misconduct, for allegedly failing to put their names down on the list of persons entering the ETB on or around the dates on which the sale or privatization of the ETB was being discussed.
6. 51. The district administration and the enterprise management are also alleged to have indirectly caused criminal charges to be brought against union officers Mr. Víctor Manuel Bautista Ramírez, Social Welfare Secretary, and Ms. Sandra Patricia Cordero Tovar, Information, Press and Propaganda Secretary, who are accused of acts of violence against an official employee, and whose case has been filed under number 588 with Public Prosecutor's Office No. 287. It should be added that Mr. Víctor Manuel Bautista Ramírez has been suspended from his post for 90 days without remuneration or wages, a sanction unilaterally imposed by decision of the management, flouting due process and the presumption of innocence.
7. 52. The complainants allege further that the ETB, pursuing its policy of sowing fear and uncertainty, recently dismissed without just cause Mr. Elías Quintana and Mr. Carlos Socha, who are covered by trade union immunity as a collective dispute is currently under way.
8. 53. In its communications dated 9 December 1997 and 8 January 1998, the CUT alleges that the Ministry of Labour, by decision of 26 September 1997, ordered the cessation of a strike held by 300 workers of the metal engineering enterprise COMESA S.A. and convened an arbitration tribunal. The Trade Union of Workers of COMESA (SINTRACOMESA) lodged an appeal to have the decision overturned, in conformity with provisions of the decision in question; hence the decision was not final but was applied anyway. According to the complainant, although the strike lasted 69 days neither the enterprise nor the Ministry of Labour made any attempt to convene a meeting to bring the sides together. The CUT points out that it is the workers who must decide freely whether they will continue to exercise the right to strike or choose the arbitration tribunal and therefore requests that the decision of the Ministry of Labour imposing arbitration be revoked.
9. 54. Lastly, the CUT alleges that 28 workers who are members of the industry trade union SINTRAELECOL were dismissed: 14 from the Cundinamarca Power Company, 13 from the EPSA enterprise in Cali and one from the Bogotá Power Company.

B. The Government's reply

1. 55. In its communication dated 7 October 1998, referring to the collective dispute in the Bogotá Telecommunications Enterprise (ETB), the Government states that section 25 of Decree No. 2351 of 1965 and section 1 of Regulatory Decree No. 1373 of 1966, which concern dismissals during collective labour disputes, provide that "workers who have submitted a list of demands to their employer shall not be dismissed without just cause, duly proven, from the date on which the demands are submitted and during the statutory periods established for direct settlement". It is enough to read this provision to deduce that it is not for the Ministry of Labour and Social Security to comply with it, since it is employers who decide at a certain point in time to hire or fire their staff, and in the event of dismissals considered to be in violation of the above provision, the workers concerned have the option of availing themselves of the ordinary labour jurisdiction.
2. 56. The Government adds that the Ministry of Labour and Social Security is empowered by law to declare work stoppages illegal, since section 451 of the Labour Code provides that the illegality of a collective suspension or stoppage of work shall be declared through administrative channels by the Ministry of Labour. Due process was not violated by the Ministry's adoption of Decisions Nos. 002286 and 002287 of 1997 declaring illegal the work stoppages in the Bogotá Telecommunications Enterprise (ETB), since in these cases the law does not provide for a procedure to be carried out before issuing an administrative decision in response to a petition to declare a strike illegal -- it is enough to verify that the stoppage or stoppages in fact occurred. Therefore, the Ministry has not violated article 29 of the Political Constitution, since in declaring work stoppages illegal it is not necessary for the parties to appear before the administrative decision is issued.
3. 57. On the subject of declaring strikes illegal, the Administrative Court of the Council of State ruled as follows in a decision dated 19 June 1997:
   • Lastly, it should be noted that the legal provisions on the matter do not provide that the trade union must be informed of the petition to declare a stoppage illegal, in which case the constitutional and legal principle of due process could be considered to be violated as suggested in the complaint. In this respect, in a decision of 5 March 1996 in Case No. 3975, this Court ... maintained that the Labour Code does not provide for a procedure to be carried out before declaring a stoppage illegal, in which the trade unions to which the workers involved in the stoppage belong should participate. For such a declaration to be lawful, it suffices for the administration to take note of the fact that one of the cases for which provision is made in section 450 has occurred. What is more, the legislator did not even envisage the possibility of lodging appeals against this decision through government channels, since this was explicitly prohibited, and appeals could be lodged against it only through legal channels before the Council of State, as provided in section 451 of the same Code ...
4. 58. Concerning the allegation that the correct time-limits had not been observed, i.e. that the stoppages were declared illegal months after they had occurred, sections 450 and 451 of the Labour Code do not fix a time-limit for the Ministry of Labour to declare or not to declare a collective work stoppage illegal. Hence the Ministry met all the legal requirements for issuing Decisions Nos. 002286 and 002287 of 9 October 1997.
5. 59. Moreover, Circular No. 019 of 1991 was in fact intended for the labour and social security inspectors and instructs them on how they should draw up reports of verifications of stoppages of work. The same is true of the circulars issued previously on this subject, and these officials comply with it, since if this were not the case the Ministry could not declare the stoppages illegal. Although it is well known that trade unions sometimes do not take part in these verification procedures, either because they are not interested in doing so or because their representatives are not present at the time, the instructions take the position that workers' organizations should always be given an opportunity to participate in these procedures.
6. 60. In its communication dated 15 January 1998, referring to the alleged dismissals in the Bogotá Telephone Company (23 workers, three of whom were members of the SINTRATELEFONOS executive committee), the Cundinamarca Power Company (14), the EPSA enterprise in Cali (13) and the Bogotá Power Company (1), the latter 28 workers being members of the industry union (SINTRAELECOL), the Government states that under section 25 of Decree No. 2351 of 1965, when workers are dismissed during a collective labour dispute, which may be in violation of its provisions, the workers concerned have the option of appealing to the ordinary labour courts which, under section 2 of the Labour Procedural Code, as amended by section 1 of Act No. 362 of 1997, were established to handle legal disputes in general arising directly or indirectly out of the contract of employment and, in particular, to handle cases involving trade union immunity of public employees, official employees and private individuals. Accordingly, workers covered by trade union immunity who are dismissed without the grounds for the dismissal having been legally determined may bring actions for their reinstatement and the consequent payment of the wages they had not received. Section 451 of the Labour Code provides that the illegality of a collective suspension or stoppage of work shall be declared through administrative channels by the Ministry of Labour and Social Security in the cases expressly laid down in the law.
7. 61. In this case, the Ministry of Labour met all the legal requirements for issuing Decisions Nos. 002286 and 002287 of 9 October 1997 declaring the illegality of work stoppages in the Bogotá Telecommunications Enterprise, and the above-mentioned legislation provides expressly that administrative decisions of this kind cannot be appealed through government channels. Accordingly, in Decision No. 000003 of 6 February 1998 the Ministry declared inadmissible the appeal for reversal lodged by the chairperson of the Trade Union of Workers of the Bogotá Telecommunications Enterprise.
8. 62. The Government specifies that the Ministry decision declaring the stoppage illegal may be contested before the jurisdiction of the executive power by filing a complaint with the Council of State, which is the highest instance within the administrative jurisdiction. This legal means of redress enables the persons concerned (trade unions or workers) to have the legality of the administrative decision reviewed, with the possible result that it may be annulled if it is found to be contrary to law. In this case, neither the trade union nor the workers individually availed themselves of this legal means of redress, which must be interpreted as a renunciation of discussion in this area and of the only possibility of preventing the decision from taking effect.
9. 63. Concerning the request for reinstatement with pay of the 23 workers dismissed by the Bogotá Telecommunications Enterprise, the Government points out in its communication of 15 January 1998 that by virtue of the autonomy of the executive, legislative and judiciary branches enshrined in the Political Constitution, the content of agreements reached by municipal councils, such as that of the privatization plan contested by the complainants, is within the exclusive remit of the councils, while the legality of their labour implications is a matter for the judiciary, which is responsible for determining the legality of such decisions.
10. 64. It may be deduced from sections 405 of the Labour Code and 25 of Legislative Decree No. 2351 of 1995 that if employers decide to dismiss workers and exceed their authority in doing so, the appropriate channel for claiming rights such as reinstatement and payment of wages and benefits which have been suspended is the judiciary, since the ordinary labour jurisdiction was established to settle legal disputes arising directly or indirectly out of the contract of employment and, in particular, those relating to the trade union immunity of official employees, private individuals and public employees. In other words, this is an individual legal dispute which the judges of the Republic have sole and exclusive competence to hear and judge, and they are the ones to whom the persons concerned should have brought their case. Their failure to file a complaint to this effect should be interpreted as a renunciation of the exercise of the legal means afforded them by the institutional framework to obtain the rights which they consider to have been violated. The Ministry of Labour is thus not empowered to order reinstatements or uphold rights such as those claimed by the complainants.
11. 65. Concerning the complainants' petition for revocation of Decisions Nos. 002286 and 002287 of 9 October 1997 issued by the Ministry of Labour, the Government states that under section 451 of the Labour Code, the illegality of a collective suspension or stoppage of work shall be declared through administrative channels by the Ministry of Labour and Social Security in the cases expressly provided for by the law. The decision is to be executed immediately and may only be appealed by bringing an action before the Council of State. In the exercise of this authority, the Ministry of Labour and Social Security issued Decisions Nos. 002286 and 002287 of 1997, having verified that the stoppages had actually occurred, i.e. the legal procedure was carried out. The trade union lodged an appeal for the reversal of this decision and it was declared inadmissible according to national legislation, and therefore Decision No. 000003 of 6 January 1998 was issued. It should be pointed out that the trade union could have brought an action before the executive jurisdiction -- the Council of State -- to declare the administrative decisions void and it did not do so, thus failing to avail itself of the legal channels which cannot be replaced by the actions of third parties.
12. 66. As regards the alleged terminations of employment under the voluntary and/or early retirement plans, the Government points out that Colombian legislation does not prohibit this, as it does not infringe freedom of contract, since each worker has the opportunity to choose freely whether or not to subscribe to such plans. If there is a defect in the manner in which the workers give their consent, this may be addressed through legal channels.
13. 67. Concerning the criminal charges against Mr. Víctor Manuel Bautista Ramírez and Ms. Patricia Cordero Tovar, the Government states that it has received a written communication dated 6 January 1999 on this matter, which was attached to the reply, from the Anti-corruption Office of the Bogotá Telecommunications Enterprise (ETB) which reads as follows:
    • ... neither this office nor any legal office of the ETB has brought criminal charges against Mr. Víctor Manuel Bautista Ramírez and/or Ms. Patricia Cordero Tovar. It has come to our knowledge that a complaint was brought by the architect Sandra Bibiana Quintero Martínez ETB 31742, against Mr. Bautista Ramírez, alleging that she had been assaulted, resulting in three days' incapacity. The case was investigated by Public Prosecutor's Office 288 for trial by the circuit judges, without any involvement whatsoever on the part of the ETB.
    • The Government points out that the existing complaint refers to a personal case involving the commission of a common crime and bears no relation to labour matters.
14. 68. Concerning the Trade Union of Workers of the Comesa Metalworking Company -- COMESA S.A. -- and the alleged violation of the right to strike, in its communication dated 7 October 1998, the Government states that the above-mentioned trade union submitted a list of demands to the COMESA enterprise, and as no agreement was reached at the direct settlement stage, the trade union declared and held a strike starting on 25 July 1997. By the powers vested in it by section 448 of the Labour Code, as amended by section 63(4) of Act No. 50 of 1990, the Ministry, by Decision No. 002183 of 21 September 1997, ordered that a compulsory arbitration tribunal be established in order to resolve the collective labour dispute. An appeal to overturn this decision was lodged, which was upheld by Decision No. 002332 of 16 October 1997. The above-mentioned provision (declared enforceable by ruling No. 115 of 26 September 1991 of the Supreme Court of Justice) empowers the Ministry of Labour, when a strike lasts for more than 60 calendar days, to order that the dispute be referred to an arbitration tribunal. When the Ministry exercises this authority, the workers are obliged to resume work within three working days, beginning on the date on which the decision was published in a widely circulated newspaper and not, as the trade union understood it to be, from the date on which the decision becomes final, since in these cases the decision is to be executed immediately, without prejudice to any appeals which may be lodged against it. This is the case because if the trade union's arguments were to be accepted, the strike would be prolonged to the detriment of the economic situation of the workers and the enterprise, and the immediate effect sought by the legal provisions would be nullified. In this case this authority was exercised bearing in mind that these tribunals provide a valid and effective means of resolving collective labour disputes.
15. 69. In its communication dated 15 January 1998, the Government reiterates that the Trade Union of Workers of COMESA S.A. submitted a list of demands to the enterprise, on which no agreement was reached at the direct settlement stage and, as a result, the trade union declared and held a strike as of 25 July 1997. By the power vested in it by section 448 of the Labour Code, as amended by section 63(4) of Act No. 50 of 1990, once the period laid down in the law had elapsed (60 days) the Ministry of Labour, by Decision No. 002183 of 26 September 1997, ordered the establishment of a compulsory arbitration tribunal as a means of resolving the collective labour dispute. An appeal for the reversal of this decision was lodged, and the decision was upheld by Decision No. 002332 of 16 October 1997. These decisions were based on the fact that when the Ministry exercises the authority conferred on it by the above-mentioned provision, the workers are obliged to resume work within three days, starting from the date on which the decision was published in a widely circulated newspaper (section 46 of the Code of Administrative Litigation) and not from the date on which the decision became final as the complainants have alleged. If this argument were accepted the strike would be prolonged to the detriment of the national economy and the public economic interest, and the immediate effects sought by the legal provision would be nullified. This is also supported by article 55 of the Constitution, which calls for the application of "means of achieving a peaceful solution to collective labour disputes" to prevent them from continuing indefinitely. The Government adds that the trade union had the possibility of filing a complaint before the administrative tribunal to contest the legality of the administrative decision, and did not do so. It is clear from the above that in this case the procedures were carried out in accordance with national legislation and the requirements of international conventions, since the complainants could have availed themselves of legal channels to assert their rights.

C. The Committee's conclusions

1. 70. The Committee observes that the allegations presented by the complainants refer to the dismissal of 20 members and three officers of SINTRATELEFONOS and to the declaration of illegality of work stoppages by the Ministry of Labour pursuant to which these dismissals were ordered, despite the fact that the alleged stoppages had occurred months before; to accusations and investigations by public bodies or the ETB enterprise affecting some 800 workers; to criminal charges brought against trade union officers Mr. Víctor Manuel Bautista Ramírez and Ms. Sandra Patricia Cordero Tovar; to the dismissal of the workers Mr. Elías Quintana and Mr. Carlos Socha during the collective dispute in which SINTRATELEFONOS was involved; to the referral of the collective dispute in the COMESA S.A. enterprise to compulsory arbitration by decision of the authorities when the workers were holding the strike; and to the dismissal of 27 SINTRAELECOL members employed in three enterprises.
2. 71. Concerning the collective disputes in the Bogotá Telecommunications Enterprise (ETB), the Committee notes the Government's statements to the effect that: (1) section 451 of the Labour Code provides that the illegality of a collective suspension or stoppage of work shall be declared through administrative channels by the Ministry of Labour and that the administrative decisions declaring the stoppages illegal were issued in accordance with the legislation; (2) an appeal for annulment could have been lodged against these decisions before the Council of State but neither the complainant nor the workers concerned had done so; (3) sections 450 and 451 of the Labour Code do not set a time-limit for the Ministry of Labour to declare a collective suspension or stoppage of work illegal; and (4) the workers covered by trade union immunity who were dismissed without the grounds for dismissal having been legally determined may bring actions for reinstatement and payment of wages due, but they have not availed themselves of these legal channels.
3. 72. While it is aware that telephone services are essential services in the strict sense of the term in which the right to strike may be restricted or even prohibited (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 536 and 544), the Committee notes that the declaration of illegality of the work stoppages in the ETB enterprise was made by the Ministry of Labour, and recalls that "responsibility for declaring a strike illegal should not lie with the Government, but with an independent body which has the confidence of the parties involved" (see Digest, op. cit., para. 522).
4. 73. In these circumstances, bearing in mind (1) that the declaration of illegality was made months after the work stoppages had occurred; (2) that the stoppages took place in the context of a privatization process which would necessarily have a substantial impact on the workers' situation (including changing their status) and in a highly tense atmosphere in which a new collective agreement was being negotiated; and (3) that according to the complainant -- and this was not denied by the Government -- attempts had been made during the bargaining process to hold up negotiations and impose compulsory arbitration on the workers, the Committee requests the Government -- over and above strict legality -- and taking account of the circumstances, to take measures with a view to furthering the reinstatement of the 23 workers who had been dismissed and requests it to take steps to this end.
5. 74. Concerning the criminal charges against trade union officers Mr. Víctor Manuel Bautista Ramírez and Ms. Patricia Cordero Tovar, the Committee notes that according to the Government the ETB has not brought criminal charges and that there has only been a complaint lodged by an individual against Mr. Ramírez referring to a personal case involving the commission of a common crime bearing no relation to labour issues. The Committee requests the Government to inform it of any ruling handed down with respect to Mr. Bautista Ramírez and any ruling that may eventually be handed down with respect to Ms. Cordero Tovar.
6. 75. As regards the allegations concerning the collective dispute in the COMESA S.A. metalworking enterprise, the Committee notes that according to the Government the decision to convene an arbitration tribunal which put an end to the strike was taken pursuant to section 448 of the Labour Code, which authorizes the Ministry of Labour, in the event of a strike lasting more than 60 calendar days, to order the dispute to be referred to an arbitration tribunal in which case the workers must resume work within three working days; failure to do so, according to the Government, would be detrimental to the economic situation of the workers and the enterprise and to the national economy and the public economic interests; the Government recalls in this connection that article 55 of the Constitution calls for the application of "means of achieving a peaceful solution to collective labour disputes" to prevent them from continuing indefinitely; the Government also states that the trade union concerned did not appeal before the administrative jurisdiction against the decision ordering arbitration. The Committee observes nonetheless that the Government has not denied the complainants' statement to the effect that neither the enterprise nor the Ministry of Labour called any meetings to bring the sides together. In these circumstances, the Committee draws the Government's attention to the fact that "Compulsory arbitration to end a collective labour dispute and a strike is acceptable if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, i.e. in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population" (see Digest, op. cit., para. 515). The Committee accordingly requests the Government to take steps to amend section 448 of the Labour Code (which has also been requested by the Committee of Experts) in line with the above-mentioned principle.
7. 76. As regards the dismissal of SINTRAELECOL members in the Cundinamarca Power Company (14), the EPSA company in Cali (13) and the Bogotá Power Company (1), the Committee notes that the Government refers in its reply to its statements in connection with the dismissals in the ETB enterprise (examined previously) mentioning the existence of appeals before the judicial authority, without indicating the reasons for the dismissals. The Committee notes further that the Government has not referred specifically to the reasons for the dismissal of the workers Mr. Elías Quintana and Mr. Carlos Socha during the collective dispute in the ETB enterprise. The Committee therefore requests the Government to indicate the concrete facts which prompted the dismissal of all of these workers. Lastly, noting that the Government has not replied to the allegation concerning accusations and investigations by public bodies or the ETB affecting some 800 workers, the Committee requests the Government to send its observations in this respect.